Gendelberg v. Warfield

• Decision Date: 31 March 2021
• Docket Number: 19-CV-2017 (AMD) (RLM)
• Parties: LEONARD GENDELBERG, Plaintiff, v. HUNTER WARFIELD, Defendant.
• Court: U.S. District Court — Eastern District of New York

LEONARD GENDELBERG, Plaintiff, v. HUNTER WARFIELD, Defendant.

19-CV-2017 (AMD) (RLM)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 31, 2021

MEMORANDUM DECISION AND ORDER

ANN M. DONNELLY, United States District Judge:

On April 8, 2019, the plaintiff brought this action against Hunter Warfield, alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"). The alleged violations arise from the defendant's efforts to collect a debt that the plaintiff claims he neither incurred nor owed. Before the Court are the defendant's motion for summary judgment and the plaintiff's cross-motion. For the following reasons, the defendant's motion is granted in part and denied in part, and the plaintiff's motion is denied.

BACKGROUND¹

The parties dispute a foundational fact: whether the plaintiff purchased an air conditioner that gave rise to debt that the defendant sought to collect. (See ECF No. 29-2, Defendant's 56.1Statement ("Def. 56.1") ¶ 1; ECF No. 32-1, Plaintiff's 56.1 Statement ("Pl. 56.1") ¶ 1.) According to the defendant's records, the plaintiff purchased an air conditioner on March 25, 2016 through the Home Shopping Network. (Def. 56.1 ¶ 1; ECF No. 29-5, Affidavit of Rich Stoltenborg ("Stoltenborg Aff.") ¶¶ 4-6; ECF No. 29-6 (consumer fact sheet); ECF No. 29-7 (a Statement of Account for Leonard Gendelberg dated April 20, 2018 lists a balance of $159.98 for an "ENERGY STAR 15,100 BTU 115-VOL" with a charge date of March 25, 2016, and lists HSNi, LLC as the creditor); ECF No. 29-12 (account information sheet); ECF No. 29-13 (customer history document lists purchases made from Home Shopping Network in the past ten years, including the ENERGY STAR 15,100 BTU 115-VOL with an order date of March 23, 2016).) The air conditioner was shipped to the address of Maxim Maximov, LLP, the law firm at which the plaintiff previously worked. (ECF No. 29-12 (account information sheet lists the address of Maxim Maximov, LLP as the shipping address); see also Pl. 56.1 ¶ 3 (the plaintiff worked at Maxim Maximov, LLP, a consumer law and bankruptcy firm).) According to the records, the plaintiff made two of three installment payments for the unit. (ECF No. 29-12.)

At his deposition, the plaintiff stated that he has had a Home Shopping Network credit card "for a number of years" and has used it to make purchases from the Home Shopping Network. (ECF No. 29-4, Gendelberg Deposition Transcript ("Gendelberg Dep.") 76:5-18, 78:24-79:4.) He said, "I'm sure I've made purchases, but at this point I can't recall what purchases they were." (Gendelberg Dep. 76:5-11.) He could not recall when he received the credit card, the last time he used it, approximately how many times he used it, or if he ever disputed a charge made with it. (Gendelberg Dep. 78:3-14.) He could not "recall" if he had "ever purchase[d] an air conditioning unit from the Home Shopping Network." (Gendelberg Dep. 79:12-14.) In a declaration filed after his deposition, however, the plaintiff stated that hedid not purchase the air conditioner. (ECF No. 32-2, Declaration of Leonard Gendelberg ("Gendelberg Decl.") ¶ 3.)

In September of 2016, the defendant sent a debt collection letter to the plaintiff, advising him that he owed a debt to "HSN-FLEXPAY DEPT" in the amount of $159.98, which had been referred to the defendant for collection. (Pl. 56.1 ¶ 5; ECF No. 29-8; see also ECF No. 29-6 (consumer fact sheet notes that the defendant was assigned the debtor account in September of 2016).) The plaintiff claimed at his deposition that he did not receive the letter. (Gendelberg Dep. 64:16-21.)

In April of 2018, the defendant and the plaintiff spoke over the telephone several times. (Pl. 56.1 ¶ 6.) The defendant called the plaintiff as part of its efforts to collect the debt, and the plaintiff called the defendant to request verification of the debt. (ECF No. 33-2, Defendant's Response 56.1 Statement ¶¶ 32, 34, 36.) In these calls, the plaintiff denied knowing about the debt, and requested verification. (Pl. 56.1 ¶ 6.)

The defendant sent the plaintiff the following "Payment Reminder," dated April 11, 2018: "The obligation in the amount of $159.98 owed by you to the creditor, the above creditor, remains outstanding. This debt may have been reported, or is scheduled to be reported, to one or more of the national credit reporting agencies: Equifax, TransUnion and/or Experian. If your debt is reported to the credit bureaus, this could adversely affect your credit." (ECF No. 1-1.)

The plaintiff paid the remaining balance of the debt through the defendant's website on April 19, 2018. (Pl. 56.1 ¶ 9.)

The defendant mailed the plaintiff two letters dated April 20, 2018: one to verify the debt, and one to confirm receipt of payment. (Id. ¶ 10; ECF Nos. 29-9, 29-10.) The verification letter states: "Enclosed is verification of debt pursuant to 15 U.S.C. § 1692g of the Fair DebtCollection Practices Act. The attached documentation identifies and describes the charges or fees you are obligated to pay. The basis of the obligation is the contract you signed, copy of which is also included." (ECF No. 29-9.) However, the letter did not include any attached documentation or contract. (See id.) The payment confirmation letter states: "This letter will confirm that we have received final payment on the above referenced account, and the debt is now satisfied." (ECF No. 29-10.)

After receiving the letters, the plaintiff contacted the defendant on April 20, 2018 to request a copy of the contract referenced in the verification letter. (Pl. 56.1 ¶ 11; ECF No. 29-6 at 9.) The Support Services Department responded, "Hunter Warfield has received the email you have sent and first of all accept our sincere apologize [sic] for this misunderstanding. The account we have in our files under your name is for HSN (that now is paid), in HSN there is not any contract that you need to sign to buy a product so, please disregard that verbiage from the letter you received." (ECF No. 29-6 at 9.) On April 23, 2018, the plaintiff requested documentation of the purchase. (Id. at 7.) The defendant emailed the plaintiff a "breakdown of charges," and the plaintiff again requested documentation of the purchase. (Id. at 6-7.) A representative emailed the plaintiff that they were "waiting for documentation" and would send it when they received it. (Id. at 5-6.) Several days later, a representative followed up by email and stated: "Since HSN is unable provide [sic] us with a written contract as orders and agreements are usually done either via the phone or the web, we will be refunding your VISA card . . . for the payment." (Id. at 5.)

The defendant issued the plaintiff a refund of $159.98, and the plaintiff's account was subsequently closed. (Pl. 56.1 ¶ 15; ECF No. 29-6.)

LEGAL STANDARD

Summary judgment is appropriate only if the parties' submissions, including deposition transcripts, affidavits, or other documentation, show that there is "no genuine dispute as to any material fact," and the movant is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The movant has the "burden of showing the absence of any genuine dispute as to a material fact." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997).

A fact is "material" when it "might affect the outcome of the suit under the governing law," and an issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Barlow v. Male Geneva Police Officer Who Arrested Me on Jan. 2005, 434 F. App'x 22, 25 (2d Cir. 2011) (summary order) (citations and quotation marks omitted). Once the moving party has met its burden, the party opposing summary judgment must identify specific facts and affirmative evidence that contradict those offered by the moving party to demonstrate that there is a genuine issue for trial. Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339, 349 (E.D.N.Y. 2015) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

DISCUSSION

"Congress enacted the FDCPA to protect against the abusive debt collection practices likely to disrupt a debtor's life." Cohen v. Rosicki, Rosicki & Assocs., P.C., 897 F.3d 75, 81 (2d Cir. 2018) (citation and quotations omitted); see also Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 27 (2d Cir. 1989) ("Congress painted with a broad brush in the FDCPA to protect consumers from abusive and deceptive debt collection practices."). The statute prohibits the use of "false, deceptive, or misleading representation or means in connection with the collection ofany debt," and "unfair or unconscionable means to collect or attempt to collect debt." 15 U.S.C. §§ 1692e, 1692f.

"In the Second Circuit, 'the question of whether a communication complies with the FDCPA is determined from the perspective of the 'least sophisticated consumer.'" Kolbasyuk v. Capital Mgmt. Servs., LP, 918 F.3d 236, 239 (2d Cir. 2019) (quoting Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 90 (2d Cir. 2008)). This standard requires "an objective analysis that seeks to protect the naive from abusive practices, while simultaneously shielding debt collectors from liability for bizarre or idiosyncratic interpretations of debt collection letters." Greco v. Trauner, Cohen & Thomas, LLP, 412 F.3d 360, 363 (2d Cir. 2005) (citations and quotation marks omitted). "[I]n crafting a norm that protects the naive . . . the courts have carefully preserved the concept of reasonableness," and may assume that "even the least sophisticated consumer . . . possess[es] a rudimentary amount of information about the world and a willingness to read a collection notice with some care." Id. (quoting Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2d Cir. 1993)) (internal quotation marks omitted). Thus, the defendant's communication is viewed "from the perspective of a debtor who is uninformed, naive, or...